“…the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings…”

Denny Hoskins (r) [2017 file photo].

This morning, via Twitter:

Senator Denny Hoskins, CPA @DLHoskins
Yes, it’s ridiculous that high school cheerleaders are disciplined for supporting the President of the United States. What’s next, banning our National Anthem before HS sporting events? Banning the Pledge of Allegiance at school?
[….]
9:50 AM · Sep 18, 2019

Apparently some moron showed up with a large Trump campaign banner at a public high school football game and prevailed upon some high school cheerleaders who were in uniform in front of the stands at the game to hold up the banner. The high school activities association admonished the school’s cheerleaders that this type of political activity did not conform with the standards of the association.

The cheerleaders were in uniform, representing their school.

Meanwhile, right wingnuttia has had a cow.

“…Banning the Pledge of Allegiance at school?”

Res judicata. Actually, stare decisis, in 1943:

WEST VIRGINIA STATE BOARD OF EDUCATION ET AL. v. BARNETTE ET AL., 319 U.S. 624

[….]

….To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.

Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence validity of the asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question….

[….]

….Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. [319 U.S. 624, 641] As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism [319 U.S. 624, 642] and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us….

[….]

That was about compulsory recitation of the Pledge of Allegiance in the public schools. Since 1943, in the United States, no individual can be compelled by the government to recite the Pledge of Allegiance. In any setting.

The Pledge of Allegiance was written by Francis Bellamy, a socialist minister, in the late 19th century for a children’s magazine with the intent that it was to be used by children in ceremonies celebrating the Columbian Exposition. The original text: “I pledge allegiance to my flag and to the republic for which it stands, one nation, indivisible, with liberty and justice for all.” Subsequent additions were made by others in the 1920s during the red scare (so immigrant children would know which flag they were saluting?) and during the Eisenhower Administration (because of fears of godless communism).

The U.S. Flag Code people keep citing as a point of law? It has the same force as Congressional resolutions commemorating motherhood, apple pie, and National Groundhog Day. By the way, that same flag code states that the image of the flag not be used as clothing or on disposable paper products (like napkins and plates) or on advertising. Good luck with that one, huh.

“…What’s next, banning our National Anthem before HS sporting events…?”

The Constitution and U.S. Supreme Court have long ago decided the primacy of the First Amendment.

So, why have the national anthem sung or performed at sporting events? As if there’s originalist intent expressed in the Constitution? Join in or not, it’s up to you. No one else. If you want to take knee, it’s up to you.

So, some questions of Senator Hoskins (r) and his uninformed and selective outrage.

Does this mean you support the U.S. Supreme Court ruling in Tinker v Des Moines 393 U.S. 503 (1969)?:

…It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol — black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam — was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible…

…In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views…

…The principle of these cases is not confined to the supervised and ordained discussion which takes place in the classroom. The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others. Burnside v. Byars, supra, at 749. But conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech…

…As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.

Note that the students were acting as individuals, not as representatives of the school.

Does this mean that you disagree with the court in Bong Hits 4 Jesus?:

…We need not resolve this debate to decide this case. For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. See Cohen v. California, 403 U. S. 15 (1971) ; Fraser, supra, at 682–683. In school, however, Fraser’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker, supra, at 506. Second, Fraser established that the mode of analysis set forth in Tinker is not absolute. Whatever approach Fraser employed, it certainly did not conduct the “substantial disruption” analysis prescribed by Tinker, supra, at 514. See Kuhlmeier, 484 U. S., at 271, n. 4 (disagreeing with the proposition that there is “no difference between the First Amendment analysis applied in Tinker and that applied in Fraser,” and noting that the holding in Fraser was not based on any showing of substantial disruption).

Our most recent student speech case, Kuhlmeier, concerned “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” 484 U. S., at 271. Staff members of a high school newspaper sued their school when it chose not to publish two of their articles. The Court of Appeals analyzed the case under Tinker, ruling in favor of the students because it found no evidence of material disruption to classwork or school discipline. 795 F. 2d 1368, 1375 (CA8 1986). This Court reversed, holding that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Kuhlmeier, supra, at 273.

Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur. The case is nevertheless instructive because it confirms both principles cited above. Kuhlmeier acknowledged that schools may regulate some speech “even though the government could not censor similar speech outside the school.” Id., at 266. And, like Fraser, it confirms that the rule of Tinker is not the only basis for restricting student speech…

So, if you skip school and hold up a banner at a school event, you can be suspended. What do you think about cheerleaders in uniform, representing their school, holding up a partisan political banner?

Finally, let’s test the selective outrage. If the cheerleaders had been approached in similar circumstances and held up a sign promoting the candidacy of one of Donald Trump’s (r) Democratic Party opponents, do you think that Senator Hoskins (r) would hold the same opinion? Most probably not.

Next time, do some homework.

Republican outrage is funny that way.

Obama’s tan suit. I rest my case.